United States District Court, E.D. California
FINDING COGNIZABLE CLAIMS FOR DELIBERATE INDIFFERENCE TO
SERIOUS MEDICAL NEEDS AGAINST DEFENDANTS FANTONE AND KHOKHAR
AND FOR VIOLATION OF DUE PROCESS AGAINST DEFENDANT KHOKHAR,
AND DISMISSING ALL OTHER CLAIMS (ECF NO. 12) ORDER FINDING
SERVICE OF SECOND AMENDED COMPLAINT APPROPRIATE, AND
FORWARDING SERVICE DOCUMENTS TO PLAINTIFF FOR COMPLETION AND
Smith (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis
with this civil rights action pursuant to 42 U.S.C. §
1983. Plaintiff filed the complaint commencing this action on
August 10, 2016. (ECF No. 1). The Court screened the
complaint and dismissed it with leave to amend on December
19, 2016. (ECF No. 9). Plaintiff filed his first amended
complaint on January 23, 2017. (ECF No. 10). The Court
screened Plaintiff's first amended complaint and provided
Plaintiff with leave to amend on March 15, 2017. (ECF No.
11). Plaintiff filed his second amended complaint on April 7,
2017 (ECF No. 12), which is before this Court for screening.
August 22, 2016, Plaintiff consented to Magistrate Judge
jurisdiction in this action pursuant to 28 U.S.C. §
636(c) (ECF No. 6), and no other parties have made an
appearance. Therefore, pursuant to Appendix A(k)(4) of the
Local Rules of the Eastern District of California, the
undersigned shall conduct any and all proceedings in the case
until such time as reassignment to a District Judge is
required. Local Rule Appendix A(k)(3).
Court will allow Plaintiff's claim for deliberate
indifference to serious medical needs against defendants
Fantone and Khokhar and Plaintiff's claim for violation
of Due Process against defendant Khokhar to proceed past the
pleading stage. The Court finds the second amended complaint
appropriate for service of process.
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The Court must dismiss a complaint or portion thereof if the
prisoner has raised claims that are legally “frivolous
or malicious, ” that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
1915A(b)(1), (2). “Notwithstanding any filing fee, or
any portion thereof, that may have been paid, the court shall
dismiss the case at any time if the court determines that the
action or appeal fails to state a claim upon which relief may
be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
complaint is required to contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). Detailed factual
allegations are not required, but “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). Plaintiff must set forth “sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Id.
(quoting Twombly, 550 U.S. at 570). The mere
possibility of misconduct falls short of meeting this
plausibility standard. Id. at 679. While a
plaintiff's allegations are taken as true, courts
“are not required to indulge unwarranted
inferences.” Doe I v. Wal-Mart Stores, Inc.,
572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks
and citation omitted). Additionally, a plaintiff's legal
conclusions are not accepted as true. Iqbal, 556
U.S. at 678.
of pro se plaintiffs “must be held to less
stringent standards than formal pleadings drafted by
lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342
(9th Cir. 2010) (holding that pro se complaints
should continue to be liberally construed after
SUMMARY OF PLAINTIFF'S SECOND AMENDED COMPLAINT
as discussed below, Plaintiff's allegations in his second
amended complaint are materially the same as in
Plaintiff's first amended complaint, and the Court refers
to its summary and analysis of Plaintiff's first amended
complaint (ECF No. 11) regarding those allegations.
second amended complaint adds significant allegations
regarding Defendant Jaswant Khokhar. Plaintiff alleges that
he was interviewed by Dr. Khokhar on July 28, 2014. Dr.
Khokhar represcribed Plaintiff Remeron and informed Plaintiff
about Trileptal. Plaintiff consented to taking Trileptal. Dr.
Khokhar then forged Plaintiff's signature on a consent
form for Risperdal. Plaintiff was not informed of Risperdal
or its side effects.
also worth noting that Plaintiff's second amended
complaint did not add allegations regarding compliance with
California Government Claims Act, which the Court discussed
in its prior screening order. (ECF No. 11, pgs. 6-7).
ANALYSIS OF PLAINTIFF'S CLAIMS IN SECOND AMENDED